The NSW Court of Appeal recently handed down its decision in the appeal matter of Squire v Squire [2019] NSWCA 90. This case involved a family provision claim against the estate by the children of the deceased.
Richard Squire had only recently separated from his second wife, Corrine. They had systematically taken steps to divide their assets including the sale of the matrimonial home and an agreement to divide the sale proceeds equally between them. Richard had three children from his previous marriage and had indicated to them that he planned to make a new will in which he would leave his estate to them.
Unfortunately, Richard died unexpectedly before he got around to making a new will. Under the terms of his existing will everything went to Corrine. She also benefited from a sizeable death benefit under his superannuation policy.
Following the deceased’s passing, two of Richard’s three children made a family provision claim out of their father’s estate under the Succession Act 2006 (NSW) claiming that Richard had not made adequate provision for them. Each child had substantial financial need and asked the Court to make an order benefiting them equally from the estate.
The trial judge at first instance dismissed the family provision claim. He took the view that despite the separation, and the effective settlement of their property affairs, Richard still had a moral duty to provide financial support to Corinne. The trial judge also accepted Corinne’s submission that Richard’s moral obligation was to provide Corrine with sufficient funds to purchase a home which was unencumbered.
On Appeal, the Court held it was both ‘right and appropriate’ to make orders in favour of the children as they were, in all the circumstances, the natural object of his testamentary bounty.
Relying on Lodin v Lodin [2017] NSWCA 327, among other authorities, the Court held that Richard had no ongoing obligation to make testamentary provision for Corinne because the informal arrangements in terms of the matrimonial property (although not formally made by the Court) were regarded by them as permanent. This had the effect of terminating any moral claim Corrine had. Richard had also made very clear statements and commitment to his children of his intentions regarding his estate.
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